Mayberry: LGBT Americans winning marriage battle

LGBT Americans are in the verge of winning the same-sex marriage legal battle throughout the United States.

U.S. District Judge Robert J. Shelby last Friday overturned Utah’s state constitutional ban of gay marriage.

This is big: He nullified a state constitutional amendment enacted in 2004 by two-thirds of that state’s voters on a subject — marriage — implicitly delegated to the states because he found it conflicted with the U.S. Constitution’s Fifth Amendment guarantee of equal protection under the law.

His decision will be the blueprint for federal courts going forward just as U.S. Justice Antonin Scalia gloomily predicted in a dissent last June when the Supreme Court struck down the federal Defense of Marriage Act.

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I suppose it is kind of the cherry on the top of the sundae that this judge happens to be sitting in heavily conservative Mormon Utah, but really, the state doesn’t matter.

Utah was one of several states that in the early 2000s passed amendments to their state constitutions enshrining the idea that marriage is between a man and a woman. Those state legislatures were sure that if it was in their constitutions, it could never be touched by federal law.

But Judge Shelby’s opinion stands for the bedrock principle, for which much blood has been spilled, that American rights cannot be granted or withheld by majority vote.

We saw that in slavery, in Jim Crow, in the denial of women’s suffrage, in child labor laws, in the right to a legal abortion, in race and gender discrimination in education, sports, employment, the military and housing. Now we see it here.

The law will change and attitudes will change. We don’t stone adulterers anymore, we can’t legally hold slaves and we don’t send children down into mines. And none of us believes that we should.

When the U.S. Supreme Court struck down DOMA earlier this year, it said the Fifth Amendment prohibits the federal government from disregarding a state’s decision to recognize same-sex marriage.

Here, Judge Shelby is stamping the other side of the coin. He is saying that the federal cannot tolerate a state’s decision to ban gay marriage, any more than it could tolerate a governor standing in the schoolhouse door to bar black children from entering.

He quotes Justice Scalia’s dissent in United States v. Windsor, the ruling that struck down DOMA: “How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Exactly. Ka-boom.

When the Supreme Court decided Windsor just five months ago, only 12 states allowed same-sex marriage. Now it is up to 18. The tipping point has been reached. The canoe is nearly over the waterfall and no amount of scuttling to the back can stop it.

The day before Shelby’s ruling, the New Mexico Supreme Court struck down that state’s laws barring gay marriage on exactly the same grounds – they violated the Fifth Amendment of that state’s constitution, which also guarantees equal protection of the law.

Virtually all states have similar amendments in their constitutions replicating the federal Bill of Rights, so logically, from here on out, either the state or federal courts will use the guarantee of equal protection to overturn such bans.

Just last Monday, after Shelby’s ruling, a federal judge in Ohio held that the state cannot refuse to recognize same-sex marriages performed in other states because that violates the “Full Faith and Credit” clause of the U.S. Constitution.

When a government strives to restrict such a fundamental human right as the right to marry and form a family, it must show that it has “a rational basis” for doing so, Judge Shelby explained.

Here, Utah was unable to show that barring or allowing same-sex couples to marry had absolutely any impact on the right of men and women to marry each other and have children. Absolutely nothing. There is no rational basis.

This common-sense logic goes back to the case of Loving v. Virginia, 47 years ago, when the Supreme Court struck down all state laws barring whites and blacks from marrying one another. There was no rational basis then and there is none now.

The legal fight will continue, tediously, state by state and point by point, for another year or so until Shelby’s decision or one very like it gets to the U.S. Supreme Court, which will then have to rule the same way it did on interracial marriage and on DOMA — because it has already set the precedents.

As Scalia says, it’s inevitable.

Jodine Mayberry is a longtime journalist. Her column appears every Friday. You can reach her at jodinemayberry@comcast.net. Read her blog, This Week in Reality, at dtweekreality.blogspot.com.